A recent U.S. Supreme Court decision about cheerleading uniforms is likely to have a significant impact on the fashion industry, prompting more designers to apply for and enforce copyright of their work.
In Star Athletica, LLC v. Varsity Brands, Inc., the court ruled that merely decorative, and not functional, elements in a cheerleading uniform can be protected by copyright.
Varsity Brands, Inc., which designs and sells cheerleading uniforms, has more than 200 copyright registrations. Those registrations include designs of lines, chevrons and colorful shapes that the company uses on its uniforms. Varsity Brands sued Star Athletica, a competitor, for infringing on its copyrights to the five designs shown below. At issue was whether the designs on the uniforms served the useful function of identifying the uniforms as cheerleading uniforms (in which case they are not protectable). Or whether the designs are solely “graphic designs” that are capable of existing independently because “they could be incorporated onto the surface of different types of garments, or hung on the wall and framed as art.”
The Supreme Court’s decision in Star Athletica provided necessary clarification on the Copyright Act. It found that (1) the designs on the cheerleading uniform “can be identified as features having pictorial, graphic, or sculptural qualities” and (2) “if those decorations were separated from the uniforms and applied in another medium, they would qualify as two-dimensional works of art [under the Copyright Act].” The court further reasoned that “[i]maginatively removing the decorations from the uniforms and applying them in another medium also would not replicate the uniform itself.” Accordingly, the court found that the designs are eligible for copyright protection. Notably, the court did not decide whether the particular designs at issue were otherwise copyrightable (e.g., whether the designs were sufficiently original to be copyrightable).
It remains to be seen how the new test will be applied in courts. But, in the meantime, the decision provides motivation to seek copyright protection for design elements included in useful articles (such as clothing, lighting fixtures, furniture, etc.).